Hiding in Plain Sight: Part 1

Every day, EMS providers from coast to coast arrive at their assigned stations early before the start of the shift to make sure that everything is set to go. They make sure the ambulance or squad is checked out, cleaned, stocked and in working order before the actual shift change. For me, that time was spent with a steamy cup of coffee in one hand — and sometimes in both. These were usually the last quiet moments before the start of a hectic 24 hours.

Whether you know it or not, preparing for the shift is not the first thing you do each day for the job. In metaphorical reality (yes, I know that’s an oxymoron), the first thing you do when you arrived at the station is slap your EMT certification or paramedic license down on the table and fervently dare the world to take it away.

“Until I go home,” you silently shout to the community you serve, “I dare any of you to catch me violating my duty, to take my career, my possessions or my livelihood!”

Again, I am aware of the oxymoron.

Six Primary Legal Exposure Areas

• En Route• On Scene• During Transport• Driving the District• In Quarters• Long After the Call/Shift

In fact, EMS seems to be the one of the few endeavors where employees place their education, skill, experience, reputation, certification, livelihood, career, finances and personal possessions on the line every day due to the threat of a lawsuit. Let’s face it - one mistake or one bizarre twist of fate is all it takes. Anything can happen.

Many providers mistakenly believe that the risks, though significant, are limited only to actual emergency response activity. Inasmuch as protecting EMS providers from the consequences while in the field is the foundation of my work, I must now burst that bubble. Legal exposure for EMS professionals exists while on your way to, on the scene of, and coming away from every call.

Certainly, a provider’s conduct and performance on the scene of an emergency presents myriad legal exposures. I believe that the majority of EMS folks nationwide bring their “A” game to every call. And while patients generally receive quality care and lawsuits are statistically minimal, here are a few common legal exposures that you should be aware of.

Scenario One: Detours and Delays

Your agency receives a bulletin from the local street maintenance department informing you about a two-week lane closure on one of the main thoroughfares in your district beginning Monday. The notice warns that traffic delays could be significant during peak hours. On Wednesday at noon, a known peak hour, you get called to respond to an emergency on the other side of the construction zone. There are several smaller streets that you could use to bypass the roadwork; however, they will take you out of your way.

En Route to the Scene

Driving with lights and sirens to an emergency presents obvious risks. Traffic, pedestrians and typical road hazards are notable considerations whether you are responding to a call or driving your own vehicle around town. If you are involved in or the cause of an accident, everyone knows there will be trouble.

What about detours and delays? Are you liable for delays that result from external factors? Like any well-trained student of the law, my answer is this:

It depends on what you know or should know at the time.

*See Scenario One in the sidebar to the left.

Duty extends beyond providing high-quality patient care. If you are driving the emergency vehicle, you have a duty to know where you are going and the most appropriate route to get there.

If you know that construction could potentially slow your response or create an unnecessary danger, then you have a duty to make the adjustments necessary to mitigate possible damages. On the other hand, if the call is at midnight, then passing through the construction zone may present no troubles due to lighter traffic and no construction work. You have to know the difference.

Ultimately, you have a responsibility to be familiar with the happenings in your district that may affect your ability to provide emergency care. This may include simple details, such as map directions, or more complex ones — common traffic patterns, train crossings, school zones, concerts, street parties, festivals, etc.

There is another obvious detail associated with emergency vehicle responses. Most collisions involving EMS vehicles result from a failure to understand and obey the local traffic laws that govern driving with lights and sirens. Because there are variations from system to system, I will not attempt to quote law. However, I will offer a blanket reminder that applies in every jurisdiction: No matter where you are or why you are responding, there is no privilege to drive recklessly or act unreasonably.

In the words of paramedic Kevin Rose, “Run the call — don’t run to the call.”

Scenario Two: Property Damage

You receive a 911 call for an elderly female who fell in the shower. After a very thorough assessment, the findings are inconclusive. Her distress level is low, her vital signs are all normal, but she has pain in her lower back. While the other crew members tend to the patient, you bring in the backboard. On your way out, you notice an impressive collection of Lladro® figurines. When you reenter with the board and turn the corner from the living room into the hall, the rear of the board strikes her treasured collection and smashes almost every piece.

On SceneThe legal exposures associated with patient care are obvious: malpractice, negligence, protocol violations, and so on. These are the areas that most training programs attempt to cover (with generally questionable efficiency in my opinion, but that is a whole other topic). Nevertheless, with even a modicum of common sense, most providers can see that the fattest portion of liability is present on scene.

But can a provider be held liable for property damage caused while on scene of an emergency? Once again, my answer is this:

It depends on whether your conduct was reasonable at the time.

*See Scenario Two in the sidebar to the right.

As a rule of thumb, reasonableness is measured by what any reasonable provider — with the same level of training and experience, in the same area, and under the same circumstances — would have done.

In this scenario, the patient was not critical, she was well attended, and you noticed the statues when you went for the board. More likely than not, a reasonable provider would have taken care not to cause such damage. You will (probably) be liable for the replacement value of the broken figurines – if she pursues the matter.

On the other hand, had the collection been broken inadvertently while you were properly managing a full arrest, the outcome might be different. While the degree of urgency may be different with every call, the reasonableness standard is always the same.

Scenario Three: Air or Ground

You receive a 911 call for an automobile collision on a country road notorious for high-speed crashes. You arrive to find one moderate injury, another who is critically injured, and one person DOA. The nearest emergency room is 15 minutes away by ground and the nearest trauma center is 25 minutes by air. The next closest ambulance is en route with an 18-minute ETA and the closest air ambulance could be on the ground in 20 minutes if you call right now. Extrication of the critical patient will take approximately 12 minutes.

During TransportOnce again, the legal exposures associated with patient care and treatment during transport are clear; knowledge, skill, and reasonableness rule the day.

Can a provider be held liable for selecting a particular transport modality, route or facility?

I hope, by now, you quickly answered, “Yes!”

Like knowing the area and protecting others from additional harm, providers must know, understand, and correctly analyze all available options for how and to where patients will be transported.

*See Scenario Three in the sidebar to the left.

Like everything else, the standard here is reasonableness. In this scenario, the most critical patient can be at the closest hospital in as little as 33 minutes; however, treatment will be limited to the skills of an ER physician with traditional ER tools and resources. The same patient could be at the nearest trauma center in about 45 minutes. The question you must answer in the heat of the moment is this: Are a trauma surgeon and a waiting team of experts and equipment worth eating an additional 12 minutes into the golden hour?

Ultimately, the choice is yours to defend. Personally, I would go with the trauma center, but that’s just me.

Scenario Four: Light it Up?

You are transporting a 50-year-old male with non-specific abdominal pain that has been going on intermittently for three days. His blood pressure is 104/56; his pulse is 104 strong and irregular. The EKG shows sinus tachycardia with occasional unifocal PVCs in Lead II, less than one per minute. His skin appears normal, warm and dry. His lungs are clear. He weighs 200 pounds. He has no medical history and takes no medications. His father and grandfather both died from heart attacks at the ages of 49 and 53, respectively. The closest receiving facility is 13 minutes Code 2 or 8 minutes Code 3. Will you transport Code 2 or Code 3?

The bottom line is that legal exposure exists just as much in where you go and how you get there, as in what you do along the way.

Scenario Four presents a tougher, but far more common situation; one you will likely have to make almost daily.

*See Scenario Four in the sidebar to the right.

It is certainly reasonable to transport Code 3 inasmuch as “time is muscle,” and getting to the door of the drug/cath lab is crucial if it is a cardiac event. On the other hand, if it is not a cardiac event, the priority transport could cause an unnecessary increase in the patient’s anxiety and subject the patient, community and you to a much greater risk of an accident.

Again, you should go with whatever you think is best. However, any time you opt for a priority transport, you must balance the risk against the necessity – that is what the jury will do. .

Hopefully, I have given you plenty to ponder for a while. These are just a few examples of what liability issues are out there. I urge you to look around and consider how these exposures affect your daily life in the field and then see how many more potential situations you can think of. You will find that there are more than you can imagine…all hiding in plain sight.

About the author

David Givot, Esq., graduated from the UCLA Center for Prehospital Care (formerly DFH) in June 1989 and spent most of the next decade working as a Paramedic responding to 911 in Glendale, CA, with the (then BLS only) fire department. By the end of 1998, he was traveling around the country working with distressed EMS agencies teaching improved field provider performance through better communication and leadership practices. David then moved into the position of director of operations for the largest ambulance provider in the Maryland. Now, back in Los Angeles, he has earned his law degree and is a practicing Defense Attorney still looking to the future of EMS. In addition to defending EMS Providers, both on the job and off, he has created TheLegalGuardian.com as a vital step toward improving the state of EMS through information and education designed to protect EMS professionals - and agencies - nationwide. David can be contacted via e-mail at david.givot@ems1.com.

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